GW2/lil 2/28/2017

FILED
2-28-17
02:50 PM

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Application of California-American Water

Company (U210W) for Approval of the
Monterey Peninsula Water Supply Project Application 12-04-019
and Authorization to Recover All Present (Filed April 23, 2012)
and Future Costs in Rates.

ADMINISTRATIVE LAW JUDGES RULING DENYING

JOINT MOTION TO STRIKE PUBLIC WATER NOWS NOTICE
REGARDING SECTION 3.1 OF THE LARGE SETTLEMENT
AGREEMENT AND EX PARTE SANCTIONS

Summary
The September 23, 2016, Joint Motion to Strike Public Water Nows Notice
Regarding Section 3.1 of the Large Settlement Agreement (LSA) is denied. All
parties and interested persons are cautioned to follow ex parte statutes and rules,
particularly as recently amended by Senate Bill 215 (Statues 2016, Chapter 807).
This includes the prohibition on ex parte communication adopted in this matter.

Background
The following 6 pleadings have been filed and are addressed in this
Ruling:

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Line Date Title

No
1 September 12, 2016 Public Water Now (formerly Citizens for Public
Water) Notice Regarding Section 3.1 of the Large
Settlement Agreement
2 September 23, 2016 Joint Motion to Strike Public Water Nows Notice
Regarding Section 3.1 of the Large Settlement
Agreement
3 September 29, 2016 Public Trust Alliance Opposition to Motion to Strike
Public Water Nows Notice Regarding Section 3.1 of
the Large Settlement Agreement
4 September 30, 2016 Public Water Now Response and Opposition to Joint
Motion to Strike Public Water Nows Notice
Regarding Section 3.1 of the Large Settlement
Agreement
5 September 30, 2016 Marina Coast Water Districts Response in
Opposition to the September 23, 2016 Joint Motion to
Strike Public Water Nows Notice Regarding
Section 3.1 of the Large Settlement Agreement
6 October 28, 2016 Notice of Intent of Public Water Now (formerly
Citizens for Public Water) to Withdraw from the LSA
that Supports Cal Ams Monterey Peninsula Water
Supply Project

Discussion
On September 23, 2016, Joint Parties1 moved to strike Attachment A to the
September 12, 2016 Notice of Public Water Now (PWN).2 Joint Parties also ask

1There are nine parties to this joint motion: California-American Water Company, Coalition of
Peninsula Businesses, the City of Pacific Grove, County of Monterey, Monterey County Water
Resources Agency, Monterey County Farm Bureau, Monterey Peninsula Water Management
District, Monterey Regional Water Pollution Control Agency, and Salinas Valley Water
Coalition.
2 The motion is titled a motion to strike PWNs Notice. The introductory paragraph states the
Joint Parties move to strike the Notice. Both the discussion and the conclusion in the motion,
however, focus on Attachment A. In particular, the conclusion is that Joint Parties request that
the Commission strike Attachment A to PWNs Notice in its entirety (Joint Motion at 4.)

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that PWN be admonished not to violate ex parte rules again or be subject to

monetary sanctions. PWN and others filed responses in opposition to the
motion. The motion and other matters are addressed below.
1. Attachment A
Joint Parties move to strike Attachment A, asserting it is an improper
ex parte communication. (Joint Motion at 3.) To the contrary, Attachment A is
part of the September 12, 2016 PWN Notice. The Notice was filed and served in
this proceeding. Filed and served pleadings, including attachments, are not ex
parte communications. The motion is denied.
Joint Parties also assert that Attachment A is an improper and untimely
attempt to comment on the LSA. (Joint Motion at 4.) Joint Parties say comments
on the LSA were due by August 30, 2013, and reply comments by September 16,
2013. Joint Parties conclude that Attachment A is untimely and must be struck.
Joint Parties are incorrect. Attachment A is not a comment on the LSA. Rather,
Attachment A identifies actions taken by PWN and explains those actions.
2. E-mails
Attachment A to the motion contains two e-mails sent to the service list.
The service list included Commission decisionmakers. The e-mails are dated
July 26, 2015 and August 9, 2016.
Without specific reference to the July 26, 2015 e-mail, a Ruling was issued
on September 16, 2015. The Ruling addresses several communications including
but not limited to the July 26, 2015 e-mail. The Ruling reminds parties and
interested persons that ex parte communications are prohibited in this
proceeding. The Ruling explains that ex parte rules are not intended to stifle
conversation, but to channel the conversation through public workshops,
public hearings, filed pleadings, or filed legal briefs, for example - so that

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everyone knows who said what and to whom, and has a chance to reply. The
Ruling states that e-mail on any substantive issue in this proceeding with service
of that e-mail on any Commission decisionmaker is prohibited.
To the extent the service list included decisionmakers PWN acknowledges
that it violated the ex parte ban. (September 30, 2016 PWN Response at 6.) PWN
says: [i]f that happened it was inadvertent and unintended. (Id.)
Even if the e-mails sent in July 2015 and August 2016 violate the ban, they
were served not just on decisionmakers but on the entire service list.3 They are
communications made in a way that everyone knows who said what and to
whom, and everyone had a chance to reply. This does not excuse PWN for
violations of the ex parte ban but, even if they violate the ban, the harm was
mitigated since there was no attempt to conceal the communication from anyone.
The September 23, 2016 Joint Parties motion does not propose a specific
monetary or other sanction against PWN for the July 2015 and August 2016
e-mails, and none are adopted in this Ruling.
3. Admonishment and Sanctions
Joint Parties ask that PWN be admonished not to violate the ex parte rules
or be subject to monetary sanctions. Joint Parties are correct, but this is true for
all parties and interested persons, not just PWN.

3 Ex parte communications are prohibited in this proceeding. Absent the prohibition, however,
the Public Utilities Code provides in ratesetting cases (such as this one) that: [w]ritten ex parte
communications may be permitted by any party provided that copies of the communication are
transmitted to all parties on the same day. (Section 1701.3(c).) The PWN e-mails conform with
Section 1701.3(c).

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In particular, all parties and interested persons are admonished not to

violate the ex parte rules, including the ex parte ban specific to this proceeding.4
This includes provisions regarding ex parte communication recently added to the
Public Utilities Code by Senate Bill 215 ( Statues 2016, Chapter 807), effective
January 1, 2017. These changes are in, but not necessarily limited to, Public
Utilities Code Sections 1701.1, 1701.2, 1701.3, 1701.4, and 1701.6. These
provisions include new limitations, reporting requirements, and the potential for
substantial sanctions or adverse consequences in Commission proceedings.
Parties and interested persons are advised that, to the extent the requirements of
Rule 8.1 et seq. of the Commissions Rules of Practice and Procedure deviate
from these new sections of the Public Utilities Code, the statutory provisions
govern.
Parties and interested persons may seek assistance from the Commissions
Public Advisor on ways to effectively participate in this or any proceeding (e.g.,
how to become a party, participate in public hearings, submit comments). The
Public Advisor can also provide advice on participation in compliance with
ex parte obligations, including the specific ex parte prohibition this proceeding.
4. PWN Notice of Withdrawal from LSA
On October 28, 2016, PNW filed its Notice of Intent to not only withdraw
from Section 3.1 of the LSA but the entirety of the LSA. No pleading was filed by
any party with respect to PWNs Notice.

4 See January 23, 2015 Ruling with respect to ex parte ban. See September 16, 2015 Ruling with
respect to interested persons, including non-parties.

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IT IS RULED that:
1. The September 23, 2016, Joint Motion to Strike Public Water Nows Notice
Regarding Section 3.1 of the Large Settlement Agreement is denied.
2. All parties and interested persons are admonished not to violate the
ex parte rules, including the ex parte ban specific to this proceeding. Parties are
advised that this includes new provisions recently added to the Public Utilities
Code.
Dated February 28, 2017, at San Francisco, California.

/s/ JEANNE MCKINNEY for

Gary Weatherford
Administrative Law Judge

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